This appeal is directed against the final order dated 10/8/2018 delivered by Ld. D.C.D.R.F, Dakshin Dinajpur in reference to CC no. 55 of 2017. The fact of the case in brief is that one Mehebuba Siren who registered a consumer complaint under section 12 of CP Act, 1986 before Ld. D.C.D.R.F, Dakshin Dinajpur on 27/11/2017 to the effect that the complainant being an educated lady was seeking for job and for that reason, she contacted with an institution styled as spectrum info farm and its proprietor Supria Ghosh and Sandip Ghosh who assured the complainant that a job would be provided to her after t training of three months on the basis of fees and the complainant was agreed with the proposal and one Subhankar Kundu as mediator of the said deal insisted the complainant to pay rupees 150019 to the said institution for her job and training. On the Advice of Subhankar Kundu the complainant then deposited rupees 150019 through her UBI Dikul Branch by a cheque dated 24/11/2016 which was duly encashed in the name of one Shaiad Fruk Azam, the account holder.

Thereafter no job could be provided to the complainant and she then contacted with Subhankar Kundu who in order to refund the said money rupees 150000 handed over a cheque bearing no. 347393 dated 27/2/2017 to the complainant and requested the complainant not to deposit the said cheque before 26/4/2017.

Accordingly the complainant deposited the said cheque in her UBI account of Dikul Branch and the said cheque was handed over by Subhankar Kundu, was drawn on Andhra bank. The said cheque amount could not be collected by the complainant in due time and then she contacted with the Bank Authority and after a lapse of three months the bank authority has informed her that the cheque could not be cashed due to non-endorsement on the part of the customer. Then she filed the consumer case against the bank, the proprietor of Spectrums info and Subhankar Kundu. The notice of consumer complaint was issued in the address of the four opposite parties but save and except op no. 1 that is UBI, Dikul Branch, the other Ops did not contest the case. So, the case against OP no. 2 to 4 was heard ex-prate. The UBI has contested the case by filing written version and stated that the alleged cheque was presented before the bank on 26/4/2017 after lapse of two month from the date of issue. The UBI then sent the said cheque for collection from the Andhra bank through UBI Kolkata office and the cheque was returned with endorsement that the cheque had no customer endorsement so, the cheque was return back to the depositor with a request to renew the said cheque but the complainant did not bother to come before bank for renewal of the said cheque. After hearing both aside, Ld. Forum came to conclusion that OP no 2 and 4 had deceived the complainant with some pre-authored plan and for that reason, the OP no. 4 was directed by the Ld. Forum to pay back rupees 150019 along with interest @ 8 per cent per annum with effect from 24/11/2016 to the complainant and rupees 5000 as litigation cost. Before passing this final order, at the instance of complainant the OP no. 2 and 3 that is Supria Ghosh and Sandip Ghosh was discharged from the case and their name were deleted from the cause title so, only the award was passed against OP no. 4 Subahkar Kundu. Being aggrieved with this order, he has registered this appeal against the decree holder Mehebuba Siren, UBI, Dikul Branch. The appeal was registered and the notice was issued against the respondent. The respondent Mehebuba Siren and UBI Dikul Branch has contested the appeal separately through their Ld. Counsels. Accordingly the appeal was heard in presence of both the contesting parties through their Ld. Advocates.

Decision with reasons,

After hearing valuable arguments canvassed before this Commission by the Ld. Advocate of all sides, it has become crystal clear  that actually the complainant entered into an agreement for a job with Supria Ghosh and her husband Sandip Ghosh who happened to be the proprietor of Spectrum info institution. It is also established beyond any doubt that one cheque was deposited to the tune of rupees 1,50,019 0.. by the complainant curiously enough the cheque was deposited not in the account of the proprietor of the farm or in the name of Subhankar Kundu, the appellant. Though the complainant mentioned that he has paid the said money through Subhankar Kundu who had insisted her to have an contact with the proprietors of spectrum info for her job. The said cheque issued by the complainant dated 24/11/2016 was deposited in the account of one Sahid Faruk Azam. Curiously enough said Sahid Frauk Azam has not impleaded in the original complaint. Secondly, save and except oral submissions, there is no documentary evidence to prove the nexus of Subhankar Kundu with the proprietor of spectrum info in connection with this above deal. Rather there was no direct agreement between Subhankar Kundu and the complainant in respect of providing a job to the complainant.

So, there is doubt about the relationship between the complainant and Subhankar Kundu in the present and disputed deal. Whether there was any relationship existed at the material point of time between Subhankar Kundu and Mahebuba siren are to be ascertained at first and it is also the duty of the Forum to hold whether there was any relationship of hirer and service provider between Subhankar Kundu and Mehebua Siren.  The plain reading of consumer means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised or under any system of any deferred payment includes any beneficiary of the services other than the person who hires and avails the service, may come with the definition “Consumer” under the Consumer protection Act, 1986. But here in this case, there was no privy of agreement between Subhankar Kundu and Mehebuba Siren. Rather the complainant has categorically mentioned that she contacted with OP no. 2 that is Supria Ghosh for the job while OP no. 2 had told her that she would provide the job to the complainant either in any school or office within six month through training for three months after payment of Commission and fees and told her also to contact Subhankar Kundu, his agent in the locality.

So, prima facie there was no contact between Subhankar Kundu and Mahebuba Siren about the job of the Mehebuba siren. Rather she paid the commission fees rupees 1,50,019 in the bank account of one Sahid Farum Azam. But curiously enough, Sahid Farum Azam has been left out in the consumer case.

Another curiosity has been broken out in the case, when the proprietor of Spectrum info that is OP no. 2 and 3 was discharged from the case at the instance of the complainant during the course of hearing before the Ld. D.C.D.R.F, Dakshin Dinajpur. Ld. D.C.D.R.F, Dakshin Dinajpur at the time of adjudicating the dispute came to a conclusion that actually op no. 2 and 4 that is Supria ghosh and Subhankar Kundu has deceived the complainant with some pre-authored manner.

The Ld. Forum has absolved the liability of Op no. 2 as because Op no. 2 was discharged form the consumer complaint at the instance of the complainant. While the direct agreement was there between complainant and Op no. 2. The liability of OP no. 4 here in this case merely comes within the terms of cheating and consumer protection Act does not deal with the cases “cheating” or cheaters.

Ld. Forum also in the observation did not elaborately mentioned as to which way the OP no. 4 has deceived the complainant with some pre-authored plan. It is also established beyond any doubt that the cheque issued in favour of complainant was handed over to the complainant dated 27/2/2017 which does not disclose as to who was the author of the said cheque. The cheque was returned on the ground that time was lapse as the cheque was deposited  after two months from the date of issue and for collection of the cheque amount, four months was already lapsed and it was return bank to the drawee for further endorsement.

So, there is no endorsement of the bank that cheque was dishonoured for want of fund or for any other reason of the author of the cheque. The return cheque also during the course of hearing could not be produced before the Ld. forum and for that reason, Ld. forum had no occasion to belief that OP no. 4 has deceived the complainant with some pre-authored plan. So, the entire findings of the Ld. Forum appears to be very unimpressive and not convincing one and liable to be interfered in the appellate stage.

Thus, the appeal succeeds on merit.

Hence, it is,

Ordered,

That the appeal be and the same is hereby allowed on contest without any cost. The Final order of Ld. D.C.D.R.F, Dakshin Dinajpur  dated 10/8/2018 in CC no. 55 of 2017 is hereby set aside.

Let the order be communicated to the concern Ld. D.C.D.R.F and also to be supplied to parties free of cost.